In the movie “West Side Story” there’s a song that the Puerto Rican girls sing whose words go: “I like to be in America, Okay by me in America, Everything free in America.” I found myself thinking a lot of criminals are humming that song after reading the Massachusetts Supreme Judicial Court’s (SJC) opinion relative to the grand jury’s attempt to subpoena Aaron’s cell phone that he had handed over to his attorney. The only thing different is that rather than saying America they are saying Massachusetts.
In a decision handed down by the SJC Monday which you can read here the SJC said if a criminal turns over evidence of his crime to his lawyer which is on a cell phone the government can in all reality never get its hands on it to use against him. The cell phone is an exception to other pieces of evidence such as a supply of cocaine, the bloody clothing that resulted from a recent murder, or the money bags from the local bank. It is because the SJC likens a cell phone to a file cabinet and notes that within the cell phone are documents.
Let’s go back to basics. There’s three ways for the government to get evidence of a crime: by seizing it pursuant to a search warrant, by seizing it without a warrant when it is in plain view and is obviously contraband or evidence of a crime, or by subpoena. After this decision all those ways have disappeared if the attorney has the defendant’s cell phone.
Here the grand jury issued a subpoena for the cell phone telling Aaron’s lawyer to turn it over. The court noted if it issued the subpoena on Aaron he need not respond to it because he could not be forced to incriminate himself.
There was an issue over whether the law firm had the cell phone because if it admitted it then it may be violating Aaron’s attorney-client privilege even though it was known that it did. The SJC did not get into that. It went on to assume the attorney had the cell telephone. It said that if Aaron could not be compelled to turn over the phone by subpoena the law firm stood in Aaron’s shoes and it too could not be compelled. In other words it did not want Aaron to suffer because he went to an attorney for advice.
There are cases that required attorneys to turn over contraband and other evidence of crimes such as stolen money, shotguns, wrist watch, and wallets. The SJC said they were not relevant to the argument. The law is that documents turned over to a lawyer to get legal advice are protected. Because a cell phone contains documents it is treated differently.
Well then why didn’t the DA get a search warrant? The government could seize Aaron’s phone with a warrant or if it were in plain view if it were on him. It seems the law governing search warrants prevents them from issuing against attorneys for documentary evidence . A cell phone like a file cabinet because it contains documents is not subject to a warrant.
The reason why documents in a lawyer’s office are protected is because the documents will related to a countless number of cases involving many different persons. The law sought to prevent the cops from going through other people’s private matters. A c ell phone only contains the file of one person. The SJC ignored such a distinction.
I can imagine that like banks the attorneys will have boxes outside their buildings where criminals can make nightly deposits of their cell phones. The SJC seemed to recognize the ridiculousness of its ruling that would allow the government to seize cell phones from criminals but not if they give them to their attorneys. It said the cell phones are not protected if given to the attorney to keep the government from getting them but only when done so to get legal advice. That’s pretty naïve to expect a criminal to ‘fess up the true reason he gave the attorney his phone.
It also says the lawyers cannot keep the cell phone forever. If at some time it no longer becomes necessary for legal advice it must go to the Commonwealth. I suppose that will be after the statute or limitations expires or in Aaron’s case after he has been denied his right to a speedy trial.
There are very serious consequences to this ruling in the Aaron Hernandez case: the Bristol DA’s case is in the process of selecting jurors now he will lose any evidence he has gained from the cell phone dealing another blow to his case. (He’s already had the victim’s text messages to his sister suppressed.) The Suffolk DA will lose evidence that he needs in his case which I’ve already suggested is not that strong.
Aaron’s odds of getting acquitted have increased even more. Maybe Aaron will be coming back to the Patriots for Brady’s last season. I doubt the judges are Patriot’s fans and trying to help out the team but I’m sure it will look like that to some.
I do however hove problems seeing how the SJC can think the attorneys need the cell phone to give legal advice. Unlike a file cabinet, everything on the phone can be downloaded in minutes and would no longer be needed. Whatever is happening the criminals and defense bar are happy. They are all changing the ring tone on their cell phones to the song ‘from My Fair Lady: “Get Me To My Attorney On Time.”